Citation Nr: 1705293
Decision Date: 02/22/17 Archive Date: 02/28/17
DOCKET NO. 16-30 659 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim of service connection for a low back disability.
2. Entitlement to service connection for blindness.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and Spouse
ATTORNEY FOR THE BOARD
J. Dupont, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from October 1942 to January 1946. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been submitted to reopen a claim of service connection for a low back disability, and from a December 2015 rating decision by the St. Petersburg RO which denied service connection for blindness. In December 2016, a videoconference hearing addressing the low back issue was held before the undersigned. A transcript of the hearing is in the Veteran's record.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2015).
The issues of service connection for blindness and for a low back disability (on de novo review) are being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required.
FINDINGS OF FACT
1. An unappealed March 2002 rating decision denied the Veteran service connection for a low back disability essentially based on a finding that such disability was not shown to be related to a disease or injury in service.
2. Evidence received since the March 2002 rating decision includes a medical statement that relates the Veteran's low back disability to his service; relates to the an unestablished fact necessary to substantiate the claims of service connection for a low back disability; and raises a reasonable possibility of substantiating such claim.
CONCLUSION OF LAW
New and material evidence has been received and the claim of service connection for a low back disability may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2015); 38 C.F.R. § 3.156 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA applies to the instant claim. As this decision grants that portion of the claim decided herein (reopens the claim), there is no reason to belabor the impact of the VCAA on the matter since any notice or duty to assist omission is harmless.
Legal Criteria, Factual Background and Analysis
Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.
38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992).
The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The Court interpreted the language of 38 C.F.R. § 3.156(a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010).
An unappealed May 1953 rating decision denied the Veteran service connection for a low back disability based essentially on a finding that a low back disability other than a congenital anomaly was not shown. He did not appeal that rating decision, or submit new and material evidence within a year following. Accordingly, it became final. An unappealed March 2002 rating decision declined to reopen the claim of service connection for a low back disability, finding that the Veteran's low back disability was not shown to be related to his service. As he did not appeal either rating decision, or submit new and material evidence within a year following, both are final based on the evidence of record at the time, and the March 2002 rating decision is the last prior final rating decision in the matter. 38 U.S.C.A. § 7105.
Evidence of record at the time of the March 2002 rating decision included service treatment records (STRs) and private treatment records, which did not show or suggest an etiological relationship between the Veteran's low back disability and his service. Accordingly, for evidence to relate to the unestablished fact necessary to substantiate the claim, and be new and material, it must tend to show a current acquired low back disability and the Veteran's service.
Evidence received since the March 2002 rating decision includes January and October 2016 statements from Dr. L.C, which relate the Veteran's current low back disability to his service. This evidence was not part of the record in March 2002, and is material, as it is competent (medical) evidence that pertains to the unestablished fact necessary to substantiate the . Consequently, and in light of the "low threshold" standard for reopening endorsed by the Court in Shade, the Board finds that the evidence received is both new and material, and that the claim of service connection for a low back disability may be reopened. De novo consideration of the claim is discussed in the remand below.
ORDER
The appeal to reopen the claim of service connection for a low back disability is granted.
REMAND
Blindness
As was noted above, in December 2016 a videoconference hearing was held before the undersigned limited to the issue of service connection for a low back disability. Notably, at the time the Veteran had two pending appeals which had not been merged prior to the December 2016 hearing (and were separately certified on appeal to the Board). The other issue certified on appeal (in August 2016) was service connection for blindness). In his June 2016 substantive appeal addressing that issue, the Veteran requested a videoconference hearing before the Board. As he has not been afforded such hearing, and has not withdrawn the request, the Board may not proceed with consideration of his appeal in the matter without affording him an opportunity for a hearing. Because videoconference hearings are scheduled by the AOJ a remand is required. See 38 U.S.C.A. § 7107(b) and 38 C.F.R. § 20.700(a).
Low Back Disability
The Veteran has presented alternative theories of entitlement to service connection for a low back disability. At the December 2016 Board hearing, he related that during service (in January 1944) he was struck by a car while walking in a pedestrian crosswalk, resulting in his current disability. STRs note he was struck from behind by an automobile. [Examination at the time was negative except for swelling and tenderness of the left calf. Following treatment with bed rest and ice packs, he was discharged to duty two days later.] Alternatively, he contends that a preexisting congenital lumbar spine anomaly was aggravated by superimposed injuries in service. See December 2016 Board hearing transcript and June 2016 statement.
The Veteran's STRs show that upon entrance and separation examinations, his spine was normal. In October 1952 (six years after separation from service), the Veteran sustained a low back work injury. X-rays at the time showed "moderate narrowing of the 5th lumbar disk consistent with chronic traumatic degenerative osteoarthritis... No evidence of recent fracture or dislocation. The lumbo sacral findings are consistent with an unstable back." A November 1952 clinical record noted an impression of, "Congenital anomaly, lumbar spine, with superimposed chronic back sprain, probably brought on by heavy work." And a December 1952 clinical record notes that the Veteran "has a congenital defect, which cannot stand repeated strain."
As the Veteran's October 1942 service entrance examination report is silent as to a preexisting spine disability, he is entitled to the presumption of soundness on entry in service with respect to the low back, which may only be rebutted by clear and unmistakable evidence of preexistence. And if the presumption of soundness on entry is rebutted, he is entitled to a further presumption that the disability was aggravated by service, which, likewise, may only be rebutted by clear and unmistakable evidence that there was no increase in disability or that any increase in disability was due to the natural progression of the preexisting condition. See Wagner v. Principi, 370 F.3d 1089, 1096-97 (Fed. Cir. 2004).
A congenital or developmental abnormality is not of itself a disease or injury within the meaning of applicable legislation [i.e., not a compensable disability]. 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted for disability due to aggravation of a congenital abnormality by superimposed disease or injury in service. See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). A congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90, 55 Fed. Reg. 45, 711 (1990). See also 38 C.F.R. § 3.303(c).
The record now contains January and October 2016 medical statements from Dr. L.C. regarding the Veteran's low back disability. In January 2016 Dr. L.C. opined, "If it was a congenital disease and he was accepted into the Navy after vigorous extensive exemption (sic), then any heavy lifting would certainly cause or aggravate his present condition." The October 2016 statement includes Dr. L.C.'s opinion that the Veteran's low back pain is at least as likely as not caused by or a result of events while in service. "Patient in Navy with known congenital LB problem which was asymptomatic when went to service, but developed back pain from lifting ammo boxes in service." However, the rationales for the opinions do not reflect familiarity with the entire record, to include details of the January 1944 motor vehicle accident in service or that the Veteran sustained an intercurrent (October 1952) postservice work injury. Accordingly, the Board those opinions are inadequate for rating purposes, and an examination to secure an adequate medical opinion in the matter is necessary.
As discussed briefly above, review of the record reveals that both VA and private examiners/providers have used the words "defect," "disease," "anomaly," and "problem" interchangeably when discussing the Veteran's preexisting lumbar spine pathology. Whether or not the Veteran had a preexisting lumbar spine disability prior to service and, if so, whether or not it was a disease or a defect, are medical questions that ultimately impact on the presumptions afforded and evidentiary standards applied. Accordingly, clarification by the orthopedic examiner is needed.
The case is REMANDED for the following:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. The AOJ should ask the Veteran to identify the provider(s) of all evaluations and/or treatment he has received for his low back since service, and to provide the authorizations necessary for VA to secure any private records of such evaluations or treatment. The AOJ should secure for the record complete clinical records (i.e., those not already associated with the record) from the provider(s) identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received.
The AOJ should specifically secure for the record all updated records of VA evaluations or treatment the Veteran has received for his low back since June 2016 (the date of the most recent VA treatment records associated with the record).
2. Thereafter, the AOJ should arrange for the Veteran to be examined by an orthopedist to ascertain the nature and likely etiology of his current low back disability. The Veteran's entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on review of the record and interview and examination of the Veteran, the examiner must provide opinions that respond to the following:
(a) Please identify (by diagnosis) each low back disability entity found.
(b) Regarding each low back disability entity diagnosed, please indicate whether such is a disease or a defect (i.e., in the nature of a congenital or developmental abnormality), and when (based on the record) each was first manifested.
(c) Please identify the likely etiology for each low back disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred in, or aggravated by (increased in severity beyond natural progression during) the Veteran's active duty service?
(d) If a congenital back abnormality is diagnosed, please opine whether any acquired back pathology has been superimposed on the abnormality, if so when that occurred (i.e., whether or not during service), and describe the superimposed pathology (and related impairment in detail).
The examiner must consider and discuss the January 1944 motor vehicle accident in service, the October 1952 work-related low back injury, and Dr. L.C.'s January and October 2016 statements. The examiner should explain the rationale for all opinions, citing to supporting factual data, as deemed appropriate.
3. The AOJ should then review the record and readjudicate this claim (de novo). If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board.
4. The AOJ should schedule the Veteran for a videoconference hearing before the Board addressing the issue of service connection for blindness. He should be notified of the hearing date, location, and time. The case should then be processed in accordance with established practices.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015).
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GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs